Case Metadata |
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Case Number: | Civil Application 17 of 2020 |
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Parties: | John Mining Temoi & Job Arnold Chepkwesi v Governor, Bungoma County, Attorney General, Speaker, County Assembly of Bungoma & County Public Service Board |
Date Delivered: | 23 Sep 2020 |
Case Class: | Civil |
Court: | Supreme Court of Kenya |
Case Action: | Ruling |
Judge(s): | David Kenani Maraga, Isaac Lenaola, Mohammed Khadhar Ibrahim, Smokin Charles Wanjala, Njoki Susanna Ndungu |
Citation: | John Mining Temoi & another v Governor, Bungoma County & 3 others [2020] eKLR |
Case History: | (Being an application for extension of time to file an appeal out of time from the Judgment and Decree of the Court of Appeal at Kisumu (Githinji, Okwengu & Mohammed, JJA) dated 30th December 2019 in Civil Appeal No. 12 of 2015) |
Court Division: | Civil |
County: | Nairobi |
History Docket No: | Civil Appeal No. 12 of 2015) |
History Judges: | Erastus Mwaniki Githinji, Hannah Magondi Okwengu, Jamila Mohammed |
Case Summary: | Factors the Supreme Court considered in an application for leave to extend time to file an appeal.
John Mining Temoi & another v Governor, Bungoma County & 3 others Civil Application 17 of 2020 Supreme Court of Kenya DK Maraga, CJ and P; MK Ibrahim, SC Wanjala, SN Ndungu and I Lenaola, SCJJ September 23, 2020 Reported by Ribia John
Civil Practice and Procedure – appeals – appeals to the Supreme Court - extension of time – extension of time to file an appeal to the Supreme Court – applicable factors - what factors did the Supreme Court consider in determining an application for leave to extend time to file an appeal - Supreme Court Rules, rules 38(2)(a) and 39(2). Brief Facts The applicants filed an application for leave to extend time to file an appeal. The applicants contended that the delay was inadvertent and was posed by the adverse effects caused by the Covid 19 pandemic. The 1st respondent opposed the application on grounds that the application lacked merit, that the delay was inexcusably inordinate, and that the right of extension was not a right that the applicants deserved. Issue What factors did the Supreme Court consider in determining an application for leave to extend time to file an appeal? Held
Application dismissed, each party was to bear their own costs.
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History County: | Kisumu |
Case Outcome: | Application dismissed |
Disclaimer: | The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information |
REPUBLIC OF KENYA
IN THE SUPREME COURT OF KENYA
(Coram: Maraga CJ & P, Ibrahim, Wanjala, Njoki & Lenaola, SCJJ)
Civil Application 17 of 2020
BETWEEN
JOHN MINING TEMOI................................................................................1ST APPLICANT
JOB ARNOLD CHEPKWESI......................................................................2ND APPLICANT
AND
GOVERNOR, BUNGOMA COUNTY.......................................................1ST RESPONDENT
HON. ATTORNEY GENERAL................................................................2ND RESPONDENT
SPEAKER, COUNTY ASSEMBLY OF BUNGOMA............................3RD RESPONDENT
COUNTY PUBLIC SERVICE BOARD..................................................4TH RESPONDENT
_______________________________________________________
(Being an application for extension of time to file an appeal out of time from the Judgment and Decree of the Court of Appeal
at Kisumu (Githinji, Okwengu & Mohammed, JJA) dated 30th December 2019 in Civil Appeal No. 12 of 2015)
____________________________________________________________
RULING OF THE COURT
1. UPON perusing the Notice of Motion application by the Applicants dated 13th July 2020 and filed on 14th July 2020, which application is brought pursuant to the provisions of Section 3(d) & (e) of the Supreme Court Act, 2011, Rules 3(5), 15(2) and 38(1) of the Supreme Court Rules, 2020 in which the Applicants seek extension of time to file an appeal out time; and
2. UPON perusing the supporting affidavit of the 2nd Applicant sworn on 13th July 2020; and
3. UPON considering the written submissions by the Applicants dated 13th July 202o and filed on 14th July 2020 wherein the Applicants contend that the delay in filing an appeal to this Court was inadvertent, and was caused by the adverse effects posed by the Covid 19 pandemic, as well as the inability to timeously obtain legal counsel for representation on a pro bono basis and certified copies of types proceedings from the Court of Appeal; and
The 1st Respondent’s submissions dated 14th August 2020 wherein it is contended that the application was without merit, that the delay is inexcusably inordinate, and that the right of extension is not a right that the Applicants deserve, in the instance; and
4. HAVING considered the application and the submissions filed by the Applicants and the 1st Respondent, by a unanimous decision of this Bench, we find that;
(a) This Court has the jurisdiction to consider and allow an application for leave to extend time – see Anuar Loitiptip v. Independent Electoral & Boundaries Commission SC Petition (App.) No. 18 of 2018; [2018] eKLR as well as Section 21(3) of the Supreme Court Act and Rule 53 of the Supreme Court Rules, 2012;
(b) That an applicant seeking extension of time must satisfy the principles set out in Hamida Yaroi Shek Nuri v. Faith Tumaini Kombe & 2 others SC Petition (App.) No. 38 of 2018; [2019] eKLR, Nicholas Kiptoo Arap Korir Salat v. Independent Electoral & Boundaries Commission & 7 others SC (App) No. 16 of 2014; (2014) eKLR among other authorities on extension of time;
(c) We thus find that the Applicants have no reasonable or cogent explanation and did not adduce sufficient reasons for the delay in filing the intended appeal as failure to obtain legal representation is not a sufficient ground for this Court to exercise its discretion in an application for leave to file an appeal out of time where no evidence is tendered in that regard. And whereas the covid pandemic initially affected the ability of parties to access this Court, there is no evidence in the present case that the Applicants were unable to access this Court or the Court of Appeal in good time to file their appeal.
(d) Furthermore, the Applicants have not annexed to their application their intended Petition of Appeal or the grounds of appeal which they wish the Court to consider in their intended Petition of Appeal and to allow the proceedings before this Court to commence in accordance with Rules 38(2)(a) and 39(2) of the Supreme Court Rules, 2020 and as determined in Yusuf Gitau Abdallah v. Building Centre (K) Ltd Petition No. 27 of 2014; [2014] eKLR;
(e) The Applicants have also not explicitly stated what constitutional provisions they intend to rely upon in bringing the intended Appeal before this Court as was pronounced in Suleiman Mwamlole Warrakah & 2 others v Mwamlole Tchappu Mbwana & 4 others Petition No. 12 of 2018; [2018] eKLR.
5. In the circumstances, we now make ORDERS as follows;
(a) The Notice of Motion application by the Applicants dated 13th July 2020 and filed on 14th July 2020 is hereby dismissed;
(b) Each party shall bear its costs.
6. Orders accordingly.
DATED and DELIVERED at NAIROBI this 23rd day of September 2020
........................... ...............................
D.K. MARAGA M. K. IBRAHIM
CHIEF JUSTICE & JUSTICE OF THE SUPREME COURT
PRESIDENT OF THE SUPREME COURT
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S. C. WANJALA NJOKI NDUNGU
JUSTICE OF THE SUPREME COURT JUSTICE OF THE SUPREME COURT
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I. LENAOLA
JUSTICE OF THE SUPREME COURT
I certify that this is a true copy of the original
REGISTRAR,
SUPREME COURT OF KENYA